J Edward v Tavistock and Portman NHS Foundation Trust

The Employment Appeal Tribunal allowed the appeal in part. The tribunal below had found the respondent had victimised the claimant by failing to redeploy him from band 5 to a band 4 role and made awards for loss of earnings, pension loss and injury to feelings.

The EAT held that the tribunal had erred in law in relation to its approach to mitigation of past loss. The tribunal had given no directions as to the legal test for mitigation, used the word "should" without explaining the applicable burden and standard and then applied a 50% percentage reduction to past loss. The EAT held that the correct approach is to follow the Gardiner-Hill methodology in mitigation cases: identify the steps the claimant ought to have taken, find when those steps would have produced alternative income and assess the income on the balance of probabilities.

The EAT declined to depart from Gardiner-Hill in this case and remitted the mitigation issue for rehearing. The tribunal’s assessment of future loss was upheld as adequately reasoned. The EAT allowed, by consent, corrections to the tribunal’s deductions for injury to feelings and certain calculation errors in pension and earnings awards.

Background and parties: The claimant was employed by the respondent as an NHS band 5 data officer and was downgraded to band 4 then dismissed in June 2018. He brought claims including race discrimination, age discrimination and victimisation; the tribunal found victimisation for failure to redeploy to a band 4 post but dismissed other claims. The respondent’s liability finding included a 40% chance the claimant would have been dismissed after a four week trial if redeployed.

Procedural posture: This is an appeal from the London Central Employment Tribunal (remedy decision sent 13 May 2021). The appeal was sifted by HHJ Beard; some grounds were allowed, others required further r.3(10) consideration. The EAT heard the appeal and reserved judgment on mitigation before handing down this decision on 17 March 2023.

Nature of the application/relief sought: The claimant appealed aspects of the remedy: principally the tribunal’s reduction for failure to mitigate (a 50% discount for November 2019 to December 2020), assessment of future loss of earnings and certain arithmetic or methodological errors in awards for pension loss and injury to feelings. The respondent cross‑appealed certain calculation errors.

Issues framed by the court:

• Whether the tribunal applied the correct legal test and gave adequate reasons when finding the claimant failed to mitigate past loss.
• Whether the tribunal was entitled to apply a percentage reduction (50%) rather than making a balance of probabilities finding as to when alternative employment would have been secured (Gardiner‑Hill issues).
• Whether the tribunal’s assessment of future loss of earnings was perverse or inadequately reasoned.
• Whether errors were made in applying a 40% liability discount to injury to feelings and in pension and earnings calculations.

Court’s reasoning and conclusions: The EAT set out relevant legal principles, including the Equality Act 2010 remedial regime and established mitigation law (Cooper Contracting and related authorities). On mitigation, the EAT found that the tribunal gave itself no legal directions, did not make clear whether the burden of proof was placed correctly, and did not explain what it meant by saying the claimant "should have" applied for band 4 posts. The EAT concluded there was a legal error and remitted the mitigation question for rehearing. The EAT further held that the tribunal erred in law in applying a straight 50% percentage reduction rather than following Gardiner‑Hill and making a finding, on the balance of probabilities, as to when the claimant would have obtained alternative NHS employment and what income that would have produced. The EAT considered the competing loss‑of‑a‑chance authorities (Allied Maples and subsequent cases) but declined to depart from Gardiner‑Hill in this case and gave guidance to the tribunal for the rehearing.

On future loss of earnings the EAT held the tribunal’s reasoning was adequate and not perverse and dismissed the challenge to that head. By consent the EAT allowed correction of calculation errors: it restored the full injury to feelings award (removing the 40% discount applied below), corrected the timing of the 40% reduction applied to pension loss, and allowed agreed deductions in respect of pension contributions and higher earnings in the claimant’s new post; the aggregate effect of agreed changes was quantified but the recalculation of past loss and interest was to follow the rehearing of mitigation.

The appeal was allowed in part. The EAT held that the Employment Tribunal erred in law on mitigation by failing to direct itself as to the applicable legal test and by applying a 50% percentage reduction to past loss without making a balance of probabilities finding as required by Gardiner‑Hill. The mitigation issue was remitted for rehearing. The tribunal’s approach to future loss was upheld. By consent, the EAT corrected errors: reinstated the full injury to feelings award, corrected the application date of the 40% discount to pension loss and allowed agreed deductions for pension contributions and higher earnings; interest and grossing up must be recalculated after the rehearing.

Appeal from the London Central Employment Tribunal (Employment Judge Goodman and members), remedy decision sent to parties 13 May 2021. The claimant’s notice of appeal was sifted by HHJ Beard (some grounds allowed, others subject to rule 3(7)); a rule 3(10) hearing permitted additional grounds. The EAT heard the appeal and remitted the mitigation point for rehearing by the Employment Tribunal.